Citation Nr: 0824449
Decision Date: 07/22/08 Archive Date: 07/30/08
DOCKET NO. 06-25 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in San
Diego, California
THE ISSUES
1. Entitlement to disability compensation, pursuant to
38 U.S.C.A. § 1151, for additional right hip impairment as a
result of VA medical treatment.
2. Entitlement to disability compensation, pursuant to
38 U.S.C.A. § 1151, for additional eye impairment as a result
of VA medical treatment.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from September
1962 to December 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2005 rating action in which the
Department of Veterans Affairs Regional Office (RO) in San
Diego, California denied the issues on appeal.
This appeal is being REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required.
REMAND
38 U.S.C.A. § 1151 provides in relevant part that
(a) compensation under this chapter and
dependency and indemnity compensation
under chapter 13 of . . . [38 U.S.C.]
shall be awarded for a qualifying
additional disability or a qualifying
death of a veteran in the same manner as
if such additional disability or death
were service-connected. For purposes of
this section, a disability or death is a
qualifying additional disability or
qualifying death if the disability or
death was not the result of the veteran's
willful misconduct and--
(1) the disability or death was caused
by hospital care, medical or surgical
treatment, or examination furnished the
veteran under any law administered by the
Secretary, either by a Department
employee or in a Department facility as
defined in § 1701(3)(A) of . . .
[38 U.S.C.], and the proximate cause of
the disability or death was--
(A) carelessness, negligence, lack
of proper skill, error in judgment,
or similar instance of fault on the
part of the Department in furnishing
the hospital care, medical or
surgical treatment, or examination;
or
(B) an event not reasonably
foreseeable
To determine whether a veteran has an additional disability,
VA compares the veteran's condition immediately before the
beginning of the medical treatment upon which the claim is
based to his/her condition after such treatment has stopped.
38 C.F.R. § 3.361(b) (2007).
To establish that VA treatment caused additional disability,
the evidence must show that the medical treatment resulted in
the veteran's additional disability. Merely showing that a
veteran received treatment and that the veteran has an
additional disability does not establish cause. 38 C.F.R.
§ 3.361(c)(1) (2007).
The proximate cause of disability is the action or event that
directly caused the disability, as distinguished from a
remote contributing cause. To establish that carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on VA's part in furnishing medical
treatment proximately caused a veteran's additional
disability, it must be shown that the medical treatment
caused the veteran's additional disability; and (i) VA failed
to exercise the degree of care that would be expected of a
reasonable health care provider, or (ii) VA furnished the
hospital care, medical or surgical treatment, or examination
without the veteran's or, in appropriate cases, the veteran's
representative's informed consent. 38 C.F.R. § 3.361(d) &
(d)(1) (2007).
Whether the proximate cause of a veteran's additional
disability was an event not reasonably foreseeable is in each
claim to be determined based on what a reasonable health care
provider would have foreseen. The event need not be
completely unforeseeable or unimaginable but must be one that
a reasonable health care provider would not have considered
to be an ordinary risk of the treatment provided. In
determining whether an event was reasonably foreseeable, VA
will consider whether the risk of that event was the type of
risk that a reasonable health care provider would have
disclosed in connection with the informed consent procedures
of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R.
§ 3.361(d)(2) (2007).
A. Right Hip
X-rays taken of the veteran's right hip in February 1994
showed osteoarthrosis with osteophyte and cystic changes.
Radiographic films of the right hip in September 1998
illustrated moderate to prominent spurring and enthesopathy
of the greater trochanter as well as changes of the margin or
right femoral head at the junction with the femoral neck
superiorly and inferiorly. Repeat X-rays taken of this joint
reflected mild osteoarthritic changes and greater trochanter
enthesophytes in December 1999 and moderate osteoarthrosis in
March 2004.
In March 2004, the veteran was treated for significant right
hip and right groin pain. On May 27, 2004, she underwent a
right total hip replacement. Prior to the operation, the
surgeon explained the risk and benefits of the procedure and
anesthesia, which include but are not limited to: risk of
infection and bleeding, neurologic deficits, need for further
surgery, and failure of prosthesis. After the surgeon
answered all of the veteran's questions, she expressed her
desire to proceed with the operation.
On the day following surgery, the veteran was discovered to
have an intraoperative complication of acetabular fracture
with pelvic discontinuity. On June 3, 2004, she underwent an
open treatment of the right acetabular fracture with plate
and screws as well as revision of the right total hip
replacement with a "Depuy" acetabular cage. The
post-operative diagnoses included right acetabular fracture
and status post right total hip replacement with component
malposition. Following the surgery, the veteran was
determined to be in stable condition with no complications.
Subsequent medical records dated through July 2004 reflect
physical therapy for the veteran's right hip pain and
weakness. A treatment session conducted later in June 2004,
the treating occupational therapist observed that the veteran
"seem[ed] . . . to have improved mobility compared to
previous sessions." In July 2004, the veteran's staples
were removed, and steristrips were placed therein. Her wound
was otherwise determined to be clean, dry, and intact.
In November 2004 the veteran complained of soreness and
stiffness with prolonged sitting; her right hip was found to
be stable. X-rays taken of the veteran's right hip in April
2005 showed status post right total hip replacement, cortical
plate, and screw fixation with no change in appearance of
heterotopic bone formation and no acute hardware
complication. Computed tomography completed several weeks
later in the same month reflected right hip replacement
producing artifacts and obscuration of detail of pelvis
structures.
Later in April 2005, the veteran underwent an excision of the
heterotropic bone of the right hip with no complications.
Prior to the surgery, a physician explained to the veteran
that risks of the operation include, but are not limited to,
bleeding, neurovascular damage, repeat procedure, and, in
rare cases, myocardial infarction, cerebrovascular accident,
and even death. After the doctor answered the veteran's
questions, she expressed her understanding of the risks
involved and of the surgical plan and stated that she wished
to proceed. Post-surgery, she was determined to be stable
with controlled pain. Her right hip diagnosis was
characterized as right hip heterotopic ossification.
Subsequent medical records reflect follow-up treatment for
suture-line drainage in May and June 2005 and for right hip
pain in January 2006. In February 2006, she sustained a
right periprosthetic hip fracture and underwent an open
reduction internal fixation two days later. At a March 2006
VA outpatient treatment session, the veteran reported doing
well and experiencing no hip pain. X-rays taken of the
veteran's right hip in June 2006 showed status post open
reduction internal fixation of complex right hemipelvis
fracture; right total hip arthroplasty with multiple cerclage
wires, lateral plate, and multiple screws indicative of prior
femoral fracture; maintained alignment; and no radiographic
evidence of hardware failure or acute complication.
In the notice of disagreement which was received in June
2005, the veteran asserted that a treating physician
"admitted . . . [that the error made in the first right hip
surgery in May 2004] was their fault and [that] he would
redue . . . [the operation] on June 3, 2004." The available
medical records do not contain any such admission.
B. Eyes
Service medical records reflect that the veteran has
refractive error. An ocular examination in May 1993
reflected "previous bilateral cataract surgery." An August
2000 VA outpatient treatment session report notes the
following eye surgeries: cataract extraction of the right
eye with intraocular lens replacement in 1985, cataract
extraction of the left eye in 1987, lens replacement in the
right eye in approximately 1990, and anterior segment
reconstruction of the left eye in approximately 1992. A
December 2003 VA outpatient treatment session report
indicates that the veteran had undergone bilateral cataract
surgery with lens implants in 1982 and 1985. (In this
regard, the Board notes that, in the notice of disagreement
which was received at the RO in June 2005, the veteran
maintained that she has undergone 4 surgeries on her eyes,
including the first two operations which occurred in 1984 and
1986.)
The only report of eye surgery contained in the claims folder
is a record of pupilloplasty, synechialysis, and anterior
vitrectomy on the veteran's left eye in April 1999.
Accordingly, further appellate consideration will be deferred
and this case is REMANDED for the following actions:
1. After obtaining appropriate
information from the veteran, the AOJ
should procure copies of reports of eye
surgeries that she has undergone since
her separation from service in December
1963. In addition, the AOJ should
obtain copies of records of right hip
and eye treatment that the veteran has
received at the VA Medical Center in
San Diego, California since June 2006.
All such available records should be
obtained and associated with the claims
file.
2. Thereafter, the veteran should be
scheduled for a VA orthopedic
examination to determine the nature,
extent, and etiology of her right hip
disability. The claims folder must be
made available to the examiner in
conjunction with the examination. All
indicated tests, including X-rays,
should be conducted.
All pertinent pathology should be noted
in the examination report. The
examiner should indicate whether the
veteran has additional right hip
disability resulting from VA treatment,
including the May 27, 2004; June 3,
2004; and April 26, 2005 surgeries. In
addressing this matter, the examiner
should discuss whether any
carelessness, negligence, lack of
proper skill, error in judgment, or
similar instance of fault on VA's part
in the furnishing of the surgical
treatment proximately caused any
additional right hip disability.
3. The veteran should also be
scheduled for a VA ophthalmology
examination to determine the nature,
extent, and etiology of her eye
disability. The claims folder must be
made available to the examiner in
conjunction with the examination. All
indicated tests should be conducted.
All pertinent pathology should be noted
in the examination report. The
examiner should indicate whether the
veteran has additional eye disability
resulting from VA medical treatment,
including any VA ocular surgery. In
addressing this matter, the examiner
should discuss whether any
carelessness, negligence, lack of
proper skill, error in judgment, or
similar instance of fault on VA's part
in the furnishing of the surgical
treatment proximately caused any
additional eye disability.
4. Following the completion of the
above, the AMC should re-adjudicate the
issues of entitlement to disability
compensation, pursuant to 38 U.S.C.A.
§ 1151, for additional right hip and/or
eye impairment as a result of VA
treatment, pursuant to 38 U.S.C.A.
§ 1151, for additional as a result of
multiple VA surgeries. If the
decisions remain in any way adverse to
the veteran, she and her representative
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for
benefits, to include the applicable law
and regulations considered pertinent to
the issues on appeal as well as a
summary of the evidence of record. An
appropriate period of time should be
allowed for response.
The veteran has the right to submit additional evidence and
argument on the matters that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2008).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).